Customs, Excise and Gold Tribunal - Delhi
Suvidha Engineers (India) Ltd. vs Cce on 5 March, 2004
Equivalent citations: 2004(96)ECC189, 2005(179)ELT323(TRI-DEL)
JUDGMENT
K.K. Usha, J. (President)
1. The assessee is the appellant. Complaint from the assessee is that the Commissioner while passing the impugned order had not followed the directions given by this Tribunal in Final Order No. 401-402/02-B dt. 27.8.02 remanding the assessee's appeal for fresh consideration.
2. Going through the order of this Tribunal dt. 27.8.02, we find that the following directions were given to the Commissioner :
"In out view, the issue deserves to be re-examined in the light of the Apex Court judgment in the case of CCE, Nagpur Vs. Wainganga Sahkari S. Karkhana Ltd. 2002 (50) RLT 125 (SC). In that case the excisability of trusses, columns and purlines fabricated at the site was involved and the Apex Court was pleased to uphold the order of the Tribunal holding that the work of fabrication was undertaken by the assessee at the site and as such the goods produced were not excisable. Even the Tribunal also in the case of Batliboi & Co. Ltd. Vs. CCE, Guntur 2002 (140) ELT 100 (T) had already remanded the matter for re-examination of the excisability of the fabrication of air ducts out of steel plates/sheets by the assessee at the site, keeping view the Apex Court judgment in the case of CCE, Jaipur Vs. Man Structurals Ltd. 2001 (130) ELT 401 (SC). The Commissioner while passing the impugned order has not taken into account the ratio of the law laid down in all the above referred cases. Therefore, the impugned order of the Commissioner is set aside impugned order of the Commissioner is set aside and the matter is sent back to the Commissioner for fresh decision in the light of the ratio of the law laid down in the above referred cases after affording reasonable opportunity of hearing to both the sides".
3. We find that the appellant is fully justified in its grievance that the Commissioner has not proceeded on the basis of the directions contained in heir order of remand. The appellants are independent contractors engaged in installation and commissioning of hearing, ventilation and air conditioning systems. They carried out the work of ducting/air-conditioning work for Hotel 'Sunair'. They were served with a SCN requiring them to pay Central Excise duty amounting to Rs. 44,79,583/-. There was a proposal for imposition of penalty also. The assessee contended that the work of ducting/air-conditioning carried out by them at site will not attract excise duty. They placed reliance on the decision of the Hon'ble Supreme court in the case of CCE,Nagpur Vs. Wainganga Sahkari S. Karkhana Ltd. Reported in 2002 (50) RLT 125. As mentioned earlier while remanding the matter, the Tribunal directed the Commissioner to consider the assessee case in the light of the decision of the Supreme Court in the case of CCE, Jaipur Vs.Man Structurals Ltd. reported in 2001 (130) ELT 401.
4. Ld. Counsel for the appellant took us through the impugned order. We do not find that the Commissioner has followed the directions contained in the remand order. In the case of Wainganga Sahkari S. Karkhana Ltd. the Hon'ble Supreme Court has taken a view that the assessee was erecting the structures at the construction site and fabricating materials on the sport could nto be considered to be fabrication in a factory. Ratio of an earlier decision in the case of Arun Industries Vs. CCe, Guntur reported in 1986 (25) RLT 580 was referred with approval. The appellant has brought to out notice another decision of this Tribunal in the case of Vikram Super Cement Vs. CCE, Indore reported in 2003 (59) RLT 156 where the specific issue of excisability of structural items like Ducts, Flanges Etc. was considered. Following the ratio of the decision in the case of Wainganga Sahakari S. Karkhana Ltd. the Tribunal took the view that erection of ducts etc. At site could nto be considered "excisable goods".
5. We find that the ratio in the above decisions has to be applied in the facts of the present case. Since we come to the conclusion that the duty demand is not sustainable, penalty cannot be imposed either on the assessee or its employee. We, therefore, set aside the order impugned and allow the appeals.